Employment Update September 2009: Unofficial strike action/misconduct

In the summer of 2005, many hundreds of workers took part in industrial action at Heathrow Airport and were dismissed from their jobs as a result.

Section 237 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) states that a dismissal may be fair if, at the time of dismissal, the employee was participating in unofficial industrial action.

Some of those dismissed at Heathrow had reasons for arguing that they were not taking part in such action. Their claims have just been heard by the EAT in the case of Sehmi and Sandhu and others v Gate Gourmet .

It is useful to see how section 237 applies in practice.

The employer had simply sent dismissal letters to all employees who were absent from work at the time of the strike.

One claimant was at home on leave when the unofficial industrial action started but, by the time he received the dismissal letter, he had found out about the strike and joined in. The EAT held that it was reasonable for the employer to take such a 'blanket' approach and that the 'time of dismissal' was when he received the letter (not when it was sent) and so his dismissal was fair under section 237.

Similarly two other claimants, who were union officials and who had started off by undertaking their official duties (ie leading negotiations between the parties) but then later joined the strike, could not rely on their status as union representatives to show their dismissals were unfair. They too had been participating in unofficial industrial action at the time of their dismissals and so section 237 applied.

Another claimant, who was on authorised leave at the time the strike started but then stayed at home and refused to work was also fairly dismissed. However, the dismissal was for gross misconduct and fair under normal principles, rather than under section 237.

Points to note -

The EAT has established the limits of section 237 and also confirmed that, despite the statutory procedures that were in force in 2005 (and presumably the Acas code on dismissals and disciplinary procedures which is in force now) and/or Article 11 of the European Convention on Human Rights (which gives the right to freedom of assembly), an employer may summarily dismiss employees for gross misconduct where they refuse to report for work.

It is also interesting to note that the fact that, as a result of later negotiations, half the workforce was eventually re-instated was irrelevant to the fairness or otherwise of the original dismissals.